Delhi District Court
Fir No. 275/08; State vs . Javed @ Pappu & Anr. Page 1 Of 25 on 30 March, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 143/09
FIR No. 275/08
P.S. Adarsh Nagar
U/S: 363/376/506/120B/34 IPC
STATE
Versus
(1) Javed @ Pappu
s/o Sh. Iqbal Ahmad
r/o N9B/375, Lal Bagh,
Azadpur, Delhi33
(2) Mohd. Jamshed @ Putty
s/o Sh. Abdulla
N25A/267, Lal Bagh,
Azadpur, Delhi
Date of Institution: 10022009
Date of arguments: 30032012
Date of judgement: 30032012
J U D G M E N T
1. The case of the Prosecution, in brief, is that Prosecutrix "K" along with her father, grandmother and four brothers and sisters were residing at 9A/521, jhuggi Lal Bagh, Azadpur, Delhi. On FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 1 of 25 17102008, at about 6 pm the grandmother of Prosecutrix sent her to bring some item from the shop. On the way, Putty and Pappu @ Javed, residents of the locality, met the Prosecutrix and asked her to accompany them otherwise her brother would be killed. Due to fear of those boys, Prosecutrix accompanied them to the Azadpur bus stand and from there she accompanied them to New Delhi Railway Station. From there, Prosecutrix was taken to Ghonda, UP and handed over her custody to one Waqar Ahmad @ Kotwal. Accused Waqar Ahmad @ Kotwal used to commit rape upon the Prosecutrix forcibly. On 03112008, Rafiq the relative of Prosecutrix traced her in Ghonda, village Khargu Chandpur and brought her to Delhi. On the statement of Prosecutrix, FIR was registered. Prosecutrix was medically examined at BJRM hospital. Accused Mohd. Jamshed @ Putty and Javed @ Pappu were arrested. After completion of investigation, chargesheet was filed in the court u/s 363/376/506/120B/34 IPC. Later on, accused Kotwal was arrested and supplementary challan was filed against him in juvenile court.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 363/365/506/120B/34 IPC and 109 IPC was framed against both FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 2 of 25 the accused to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 12 witnesses. Statements of accused u/s 313 Cr. P. C. were recorded wherein they denied all the allegations made against them. Accused did not opt to lead defence evidence.
4. I have heard the Ld. Defence counsel and Ld. APP for the State and have perused the entire record.
5. In the present case, both the accused have been charged 363/365/506/120B/34 IPC and 109 IPC. Section 363 IPC specifies the punishment for the offences defined in sections 360 and 361 IPC. To support a conviction of kidnapping from lawful guardianship under this section, the facts must come within the ambit of section 361 i.e. the person against whom the offence is committed must be under the age of 16, if a male and under the age of 18, if a female. Therefore, section 363 IPC has to be read with section 361 IPC. Section 365 IPC lays down the same penalty as section 363 but it punishes abduction not mentioned in that section. Section 365 IPC requires an intention to confine a person secretly and wrongfully. The essence of an offence under this section is kidnapping. Therefore, where the accused cannot be convicted u/s 363 IPC, he/ she cannot be convicted under this section. Section FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 3 of 25 506 IPC prescribes punishment for the offence of criminal intimidation as defined u/s 503 IPC. The punishment is more severe where the threat is of the type specified in para 2 of this section. Section 120B IPC provides for punishment of criminal conspiracy. Section 109 IPC provides for punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
6. Ld. Counsel for the accused has argued that the alleged incident is dated 17102008. On 03112008, Prosecutrix "K" was brought at home and the FIR was lodged on 10112008 and prior to it no report or statement was recorded. What stopped the parents to lodge the complaint of missing of Prosecutrix. No medical examination of the Prosecutrix was conducted. Meaning thereby, there is a delay of 24 days which is not explained which casts a serious doubt on the veracity of the allegations made against the accused. The Ld. Defence counsel has further argued that on 14092008 Prosecutrix also eloped with Kotwal and PW3/ Tuffel Khan, father of the Prosecutrix, made a report to the PS concerned FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 4 of 25 in this regard. However, later on Prosecutrix went to the PS concerned and given the statement that she went with Kotwal with her free will and consent since she was in love affair with him and she was not willing to come back with her father. The Ld. Counsel for the accused has also argued that Prosecutrix was insisting to go with Kotwal but she was kept with her father forcibly. Prosecutrix again went with Kotwal with her free will and consent and remained with him in Ghonda. The father of the Prosecutrix was having the knowledge of his daughter/ Prosecutrix that she was with Kotwal at Ghonda, UP and due to this fact, neither any complaint nor FIR was lodged in this regard till his daughter returned on 03112008. Therefore, the accused have been falsely implicated in this case after well deliberation being a relative of Kotwal. Ld. Counsel for the accused has further argued that PW4, relative of the father of the Prosecutrix, also admitted this fact in his examination in chief that in the year 2008, Prosecutrix had ran away with Kotwal. Kotwal is the brother in law of accused Mohd. Jamshed. The Ld. Counsel for the accused has argued that there are major contradictions in the testimonies of PWs and even PW4, PW5 Prosecutrix herself, and PW9 turned hostile, therefore, the Ld. APP sought the permission from the Ld. Predecessor court to crossexamine them which was FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 5 of 25 allowed.
7. Whereas, the Ld. APP for the State has argued that on 17102008, both the accused threatened the Prosecutrix, then 14 years old, to kill her brother and due to this fear, she accompanied with them firstly to Azadpur Bus Stand and thereafter to New Delhi Railway Station and then the accused took the Prosecutrix to Ghonda, UP. The accused handed over the Prosecutrix to the accused namely Waqar Ahmad @ Kotwal (accused before JJ Board). Kotwal used to commit rape upon the Prosecutrix forcibly and under the threat which have improved by the PWs on behalf of the Prosecution. There are minor contradictions in the testimony of PWs which do not go to the root of the case. The Ld. APP for the State, in support of his arguments has relied upon the judgements reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhana, AIR 2011 SC 200; Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan, 2008 IV AD (SC) 453; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and Bhagwan Dass Vs. State (NCT) of Delhi, 2011 III AD (CRI.)(SC)157.
8. In view of the above arguments of the Ld. Defence FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 6 of 25 counsel and the Ld. APP for the State as well as the judgements relied upon by the Ld. APP for State, let us discuss and examine the evidence led in this case as to whether the accused had committed the offence as per the charge framed against them. PW5 is the Prosecutrix "K". She deposed that they are four brother and sisters. She could not recall the month and year but stated that date was th 17 . On that day, in the evening, her grandmother sent her to the market to bring jalebi. At the shop, two boys by the name Putty and Pappu met her. They asked her to accompany them failing which, they would kill her brother who was captured by them. Due to their fear, Prosecutrix "K" accompanied them. They took her to Azadpur bus stand. From there, they took her to Old Delhi Railway Station in a bus and from there she was taken to Ghonda in a train by Putty and Pappu. After handing over her to a person by the name Kotwal, they both went away. Kotwal took her to his house and kept her in the house and used to perform sexual intercourse with her against her consent. Her brotherinlaw Rafiq i.e. husband of daughter of Mausi of her father came searching for her at Ghonda and brought her to Delhi from the house of Kotwal. The elder brother of Kotwal, who was also residing in the house, threatened that he would kill her father with a bomb. After few days, she along with her father went FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 7 of 25 to the PS to lodge the report and her statement Ex. PW5/A was recorded by the police which bears her signature at point A. She was produced in court and her statement was also recorded in the court. PW5 deposed that two boys who took her from Delhi to Ghonda were not present in the court. She also deposed that she was also taken to the hospital for medical examination and her undergarment was seized. The witness identified her statement u/s 164 Cr.P.C. as Ex. PW5/B bears her signature at point A. PW5 also identified her underwear as Ex. P1. I take a pause here. The said testimony of PW5 aged 17 years at that time was recorded in the court on 24112011. Both the accused were also present with their counsel. Meaning thereby, the Prosecutrix "K" did not identify the accused at that time that they were the same two boys who took her from Delhi to Ghonda. Even at the time of crossexamination by Ld. APP for the State, PW5 denied the suggestion that Putty and Pappu who were living in her neighbourhood, met her on the way and not at the shop. PW5 could not say that she was taken to New Delhi Railway Station and not Old Delhi Railway Station. PW5 further denied the suggestion put by Ld. APP that Rafiq is the husband of daughter of her Mausi and not her father's Mausi. PW5 also denied the suggestion that accused Javed @ Pappu and Mohd. Jamshed FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 8 of 25 who was also known as Putty and were present in court were those two boys who took her under threat to Ghonda and handed over to Kotwal. PW5 admitted that after consultation with the relatives, the report was lodged with police on 10112008.
9. PW3 Tuffel Khan deposed that on 17102008, his mother sent his daughter Prosecutrix "K", then aged 14 years, to a shop to buy goods. She did not return back. On 03112008, his relative Rafiq brought his daughter at home. His daughter told him that when she had gone to buy goods, accused Pappu and Putty, (both accused correctly identified by the witness) met her and asked her to accompany them under the threat of killing her brother. They then took her to Railway Station and from there took her to Ghonda (UP) in a train and handed over her to Kotwal and both the accused then came back. His daughter further told that Kotwal raped her under threat that he would kill her father and brother by bomb blast. He took his daughter to the PS where police recorded statement of his daughter. His daughter was got medically examined from BJRM hospital. The doctor handed over the pullandas to the IO which were seized by the police vide seizure memo Ex. PW3/A. The accused were not traceable. Later, PW3 came to know that both accused were arrested by the police. In response to leading FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 9 of 25 question by Ld. APP for State, he admitted that they went to PS on 10112008 to lodge the report after consulting and deliberation with the family members.
10. During crossexamination, PW3 deposed that he has two wives and both are alive. The name of his first wife is Ishrat and he married her in the year 1991. He has two children from his first marriage named Shahnawaz, now aged about 17 years and Mushkan, aged about 9 years. He has divorced his first wife. The name of his second wife is Vimla and he married her in 1993. He has four children from his second wife namely Kumari "K", aged 15 years; Mushtaq Khan, aged about 1213 years; Chini, aged about 89 years and Harsh, aged about 6 years. Vimla also has a daughter by the name Kajal aged about 1718 years from her first husband. PW3 further deposed in his crossexamination that Kajal started residing at his house since the year 1993 after his marriage with Vimla. He does not know the name of natural father of Kajal. PW3 denied the suggestion that Kajal had filed a complaint against him and his wife. He volunteered to say that complaint was filed only against his wife Vimla. He did not remember what was the cause of complaint and the year in which the complaint was filed. He further deposed in crossexamination that Kajal was not residing FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 10 of 25 with him and Vimla. PW3 denied the suggestion that he and his wife tried to sell Kajal to someone and in turn she made a complaint to the police. PW3 further denied the suggestion that they made constant pressure upon Kajal and forced her to comply their wishes, she left their house after lodging a complaint against PW3. PW3 further deposed that at present, Kajal was residing with accused Pappu. PW3 did not know whether Kajal has married Pappu; however, he has heard the same. PW3 further deposed that Vimla was also not residing with him and only his children were staying with him. PW3 denied the suggestion that Kajal was in love affair with Pappu for last considerable time and he had negotiated with someone else to sell Kajal against Rs. 50,000/ which she opposed and finally she got married with Pappu. PW3 further deposed during crossexaminatino that on 17102008, when he came to know that his daughter was missing, he made a call to police. PW3 had not made any complaint to the police in writing. PW3 did not remember the phone number from which he made phone call to PCR. PCR officials remained at his home for some time and thereafter local police was also called. The local police officials advised him to search his daughter with his own efforts. He kept on visiting the PS and met the IO ASI Shashi Kumar and told him that he has FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 11 of 25 searched his daughter in all possible places and relations but she was still missing. PW3 also met the SHO and ACP concerned who also asked him to search his daughter with his own efforts. PW3 went to search his daughter even at his native place and other places but she was not traceable. PW3 further deposed during crossexamination that his daughter came to his home on 03112008 at about 45 pm and before that he had no idea about her whereabouts. He did not take Prosecutrix "K" to the PS on 03112008. He volunteered to say that police was only informed. Police took her to the hospital next morning i.e. 04112008. On 04112008, only the statement of Prosecutrix was recorded in his presence by IO and his daughter was handed over to one Lady Constable and on the very same day, his daughter was medically examined in the hospital. PW3 denied the suggestion that he had not made any complaint either to the PCR or local police before 10112008. PW3 deposed that he had seen Prosecutrix "K" reading and writing. He could not recall the date when his statement was recorded in the PS. Written paper was produced and shown to PW3 regarding identification to which PW3 replied that it was not in the handwriting of Prosecutrix "K".
11. PW3 further deposed in this crossexamination that FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 12 of 25 initially, he got the prosecutrix admitted in Lal Bagh in a private Primary School. He got admitted his daughter Kumari "K" in Govt. Girls Secondary School, Azadpur, Delhi, the year he did not th remember but she was got admitted in 6 class. He deposited two documents in the said school, one given by private school situated at Lal Bagh i.e. School Leaving Certificate and one ID proof later on deposited by him. PW3 denied the suggestion that date of birth of Prosecutrix was not inquired by Secondary School authority when she was got admitted. PW3 denied the suggestion that on 14092008 also his daughter Kumari "K" eloped with Kotwal and he made a report to the PS to this effect. PW3 further denied the suggestion that Kotwal and Kumari "K" appeared before the concerned police officials and Kumari "K" made a statement to the police that she went with Kotwal with her free will and consent as she was in love affair with him. PW3 also denied the suggestion that at that time she was not willing to come back with him and SHO concerned told him that he will send Kumari "K" to Nari Niketan as she was not inclined to go with her parents and the brother in law (Jija) of Kotwal namely Mohd. Jamshed, one of the accused present in court was asked to send his brother in law (Sala) to his native place or that thereafter Kotwal was sent back. PW3 also denied the FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 13 of 25 suggestion that Kumari "K" was still insisting to go with Kotwal but was kept with them forcibly. PW3 further denied the suggestion that Kumari "K" went with Kotwal with her free will and consent again and remained with him in Ghonda. PW3 denied the suggestion that he was having the knowledge of presence of his daughter/Prosecutrix at Ghonda that is why he did not make any written complaint with the police or no FIR was lodged with the police in this regard before return of his daughter on 03112008. PW3 further denied the suggestion that Prosecutrix did not tell him that she was taken away by the accused present in court or that they have nothing to do with the present case. PW3 also denied the suggestion that accused have been falsely implicated by him after well deliberation being relative of Kotwal. Court question was put to PW3 that in his examination in chief in response to the leading question, he admitted that he had taken his daughter to the police on 10112008 after consultation and deliberations with his family members but in his crossexamination he stated that police took the Prosecutrix to the hospital on 04112008. Whether the examination of the Prosecutrix was conducted before 10112008? PW3 replied that police took his daughter to the hospital before 10112008.
12. PW4 Mohd. Rafiq in his examination in chief deposed FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 14 of 25 that he knows accused Mohd. Jamshed and Pappu @ Javed (correctly identified) as they are in his relation (sons of his Bua). He further deposed that he knows Tufel Khan, father of Prosecutrix "K", as he is maternal uncle of his wife. In the year 2008, Prosecutrix "K" had ran away with Kotwal, who is the brotherinlaw of accused Mohd. Jamshed. Mohd. Jamshed rescued Prosecutrix "K" from Kotwal and brought Prosecutrix "K" and Kotwal to Delhi and handed over Prosecutrix "K" to Tufel Khan. Kotwal was badly beaten up by Tufel Khan. At his asking, Kotwal was sent to village. After about 15 days or a month, Prosecutrix "K" came to know about the village address of Kotwal and fled away from her house and joined Kotwal at the village. Tufel Khan requested him to bring back his daughter from the village. During the vacations of Diwali, he along with Mohd. Jamshed went to the village. Prosecutrix "K" was reluctant to come back but they forcibly brought her to Delhi and handed her custody to her father Tufel Khan. After few days, police apprehended accused Mohd. Jamshed. Since the testimony of PW4 was not in complete consonance with his previous statement, therefore, the Ld. APP sought permission to crossexamine PW4 which was allowed by the Ld. Predecessor Court. During crossexamination by Ld. APP, PW4 denied the suggestion that police had recorded his FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 15 of 25 statement. PW4 further denied the suggestion that he had stated before the police that one day accused Mohd. Jamshed and Javed @ Pappu who were known to him had told him that they would do something due to which his fatherinlaw Tufel Khan would not be able to show his face to the society. PW4 also denied the suggestion that he became suspicious and informed about the same to Tufel. PW4 denied that when he came to know that Prosecutrix "K" had been kidnapped, he made inquiry at his own and Javed @ Pappu and Jamshed informed him that they were far away from Delhi or that while searching for Prosecutrix "K", he reached the village of Kotwal at Khargu Chandpur, Ghonda, UP and from there he brought Prosecutrix "K" to Delhi on 03112008. However, PW4 volunteered that Tufel Khan himself told him that his daughter Prosecutrix "K" had herself ran away.
13. PW9 Sohail Khan in his examination in chief deposed that he is running a mobile repair shop at Lal Bagh, Azadpur, Delhi. Prosecutrix "K" is daughter of his younger brother Tufail Khan who was living at Jhuggi No. 9A/521, Lal Bagh at the time of incident. PW9 further deposed that about two years back he was called by the police of PS Adarsh Nagar for inquiry regarding Prosecutrix "K". Both the accused persons namely Javed @ Pappu and Mohd. FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 16 of 25 Jamshed @ Putty were present in the PS at that time and he told the police that he knew them. Thereafter, he was asked to go from the PS. Since PW9 was resiling from his earlier statement, therefore, the Ld. APP for the State sought permission to cross examine PW9 which was allowed by this court. During cross examination, PW9 deposed that he does not remember whether police recorded his statement or not. PW9 denied the suggestion that he had stated to the police in his statement Mark PW9/A that accused persons Javed and Mohd. Jamshed took the Prosecutrix "K" after enticing her and they left her at Ghonda, UP. PW9 further denied that he had stated to the police in his statement Mark PW9/A that he joined investigation with the police on 12.12.2008 and both the accused present in the court were apprehended by the police near Laxmi Narayan Mandir, Lal Bagh. PW9 also denied the suggestion that he had stated to the police in his statement Mark PW9/A that accused persons were the same boys against whom Prosecutrix "K" and his brother Tofail Khan had lodged FIR in the present case.
14. PW2 Ram Kishan, Lab Assistant, Govt. Girls Sr. Secondary School, Azadpur village, Delhi brought the Admission Register of Govt. Girls Sr. Secondary School, Azadpur relating to FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 17 of 25 the admission of Prosecutrix "K" whereby vide admission no. 3204 dated 29032006, Prosecutrix "K" d/o Tufel Khan was admitted in th the School in 6 Class. As per the admission register, her date of birth is 01011994. PW2 proved the relevant entry of admission register as Ex. PW2/A (OSR). PW2 identified the signature of Ms. Meena Kanwar at point A and of admission Incharge Vijay Laxmi at point B on the certificate Ex. PW2/B. During crossexamination by Ld. Defence counsel, PW2 deposed that no birth certificate was filed at the time of admission and he cannot tell from the admission register whether the School Leaving Certificate of the last school was produced at the time of admission and there is no other record with the School relating to the admission of Prosecutrix "K" in the School. PW2 admitted that as per the admission register the name of Prosecutrix "K" was deducted on 25102008 because she was regular absentee. PW1 Dr. R. S. Mishra, CMO, BJRM Hospital deposed that on 10112008 he was posted at BJRM hospital as CMO and on that day, Prosecutrix "K", female 14 years was brought by SI Mukesh for medical examination and bony age determination with alleged history of rape. He prepared her MLC Ex. PW1/A in his handwriting bearing his signatures at point A and name at point B. The patient was conscious and oriented and he observed no fresh FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 18 of 25 external injuries. He referred the patient Prosecutrix "K" to SR Gynaecology & Obstetrics for gynaecological examination and urinary test for pregnancy and further advised for Xrays for bony age determination if urinal test for pregnancy found negative. PW12 Ms. Shunali Gupta, Civil Judge, Tis Hazari deposed that on 30012009, she was posted as Metropolitan Magistrate in Rohini Courts, Delhi. On that day, an application Ex. PW12/A for recording of the statement of Prosecutrix "K" was marked to her by the Link MM Sh. Neeraj Gaur. The statement u/s 164 Cr.P.C. Ex. PW5/B of Prosecutrix "K" was recorded by her on 31012009. The statement also contained certificate Ex. PW12/B given by her. IO moved an application PW12/C for obtaining copy of the statement of Prosecutrix "K".
15. PW6 to PW8 and PW10 and PW11 are the police officials. PW7 in his crossexamination deposed that he had not made any entry in the Rojnamcha with regard to the information given by the secret informer in connection with this case. PW7 further deposed that he had not constituted any raiding party in consultation with the SHO in order to apprehend the person against whom they got the secret information. The secret informer had not mentioned any place from where the accused could be FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 19 of 25 apprehended and he simply told that he could get the accused apprehended. They did not visit the house of any of the accused even on 12122008. They did not inform the complainant or his family members about the said information about the accused. PW8 in his crossexamination also deposed that he had not made any departure entry before leaving the police station. The secret informer met them at the spot only. However, PW8 again said that he met them prior to reaching there and he was roaming around along with them. No passerby, public person or priest of the temple was called upon to join the investigation. The secret informer had pointed out towards the accused persons mentioning their particular names. PW8 could not tell whether the Investigating Officer had mentioned about the secret informer in the departure entry in the roznaamcha as no such entry was made in his presence. The disclosure statement of both the accused was recorded at the place of their apprehension near the Narayan Temple. The disclosure statement of accused Mohd. Jamshed was recorded in the presence of Sohail Khan and Sobha Nath Yadav and Javed @ Pappu. Shobha Nath Yadav and Sohail Khan were not made witness of the disclosure statement of the accused. No arrival entry made by PW8 after coming back to the PS and no arrival entry was made by IO in FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 20 of 25 this regard in his presence.
16. It is evident from the evidence led by the Prosecution that PW5 Prosecutrix has not identified the accused in the court that they were the same boys who had taken her from Delhi to Ghonda. Since her testimony was not in consonance with her previous statement, therefore, the Ld. APP for the State was allowed to crossexamine PW5 by the Ld. Predecessor court. Even, during crossexamination by the Ld. APP, PW5 denied that accused Putty and Pappu living in her neighbourhood met her on the way and not at the shop. Further, she could not say that she was taken to New Delhi Railway Station. PW5 denied the suggestion that accused Javed @ Pappu and Mohd. Jamshed known as Putty present in the court are those two boys who took her under threat to Ghonda and handed over to Kotwal. PW3, father of the Prosecutrix was having two wives alive and divorced his first wife namely Ishrat. PW3 is having four children from his second wife namely Vimla. The names of four children are Kumari "K" aged 15 years; Mushtaq Khan, aged about 1213 years; Chini, aged about 89 years and Harsh, aged about 6 years. Vimla also has a daughter by the name of Kajal aged about 1718 years from her first husband. PW3 does not know the name of natural father of Kajal. PW3 admitted in his cross FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 21 of 25 examination that at present, Kajal was residing with accused Pappu. PW3 did not know whether Kajal had married Pappu; however, he heard the same. PW3 further deposed that Vimla was also not residing with him and only his children were staying with him. On 17102008, when PW3 came to know that his daughter was missing, he made a call to police but PW3 had not made any complaint to the police in writing. PW3 also admitted that his daughter came to his home on 03112008 at about 45 pm but he did not take Prosecutrix "K" to the PS on 03112008.
17. PW4 Mohd. Rafiq, relative of PW3 categorically deposed that in the year 2008, Prosecutrix "K" had ran away with Kotwal, who is the brotherinlaw of accused Mohd. Jamshed and Mohd. Jamshed rescued Prosecutrix "K" from Kotwal and brought Prosecutrix "K" and Kotwal to Delhi and handed over Prosecutrix "K" to Tufel Khan/PW3. Kotwal was badly beaten up by Tufel Khan. At his asking, Kotwal was sent to village and after about 15 days or a month, Prosecutrix "K" came to know about the village address of Kotwal and she fled away from her house and joined Kotwal at the village. Tufel Khan requested him to bring back his daughter from the village. During the vacations of Diwali, he along with Mohd. Jamshed went to the village. Prosecutrix "K" was reluctant to come FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 22 of 25 back but they forcibly brought her to Delhi and handed her custody to her father Tufel Khan. After few days, police apprehended accused Mohd. Jamshed. PW4 denied that when he came to know that Prosecutrix "K" had been kidnapped, he made inquiry at his own and Javed @ Pappu and Jamshed informed him that they were far away from Delhi or that while searching for Prosecutrix "K", he reached the village of Kotwal at Khargu Chandpur, Ghonda, UP and from there he brought Prosecutrix "K" to Delhi on 03112008. PW4 volunteered that Tufel Khan himself told him that his daughter Prosecutrix "K" had herself ran away. PW9 Sohail Khan does not remember whether police recorded his statement or not. Even PW9 denied the suggestion that he had stated to the police in his statement Mark PW9/A that accused persons Javed and Mohd. Jamshed took the Prosecutrix "K" after enticing her and they left her at Ghonda, UP. PW9 also denied the suggestion that he had stated to the police in his statement Mark PW9/A that accused persons were the same boys against whom Prosecutrix "K" and his brother Tofail Khan had lodged FIR in the present case.
18. PW2 proved the relevant entry of admission register as Ex. PW2/A (OSR). As per the admission register, date of birth of Prosecutrix is 01011994. However, no birth certificate was filed at FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 23 of 25 the time of admission and as per the admission register the name of Prosecutrix "K" was deducted on 25102008 because she was regular absentee. PW1 Dr. R. S. Mishra proved the MLC Ex. PW1/A and deposed that the prosecutrix was conscious and oriented and he observed no fresh external injuries. He referred the Prosecutrix "K" to SR Gynaecology & Obstetrics for gynaecological examination and urinary test for pregnancy and further advised for Xrays for bony age determination if urinal test for pregnancy found negative. PW12 proved the statement u/s 164 Cr.P.C. Ex. PW5/B of Prosecutrix "K" recorded by her on 31012009. PW6 to PW8 and PW10 and PW11 are the police officials.
19. Thus, it has emerged from the testimony of PW4 relative of father of the Prosecutrix, PW5/ Prosecutrix herself, and PW9 elder brother of the father of Prosecutrix that they have not supported the Prosecution case. The crossexamination conducted by the Ld. APP for the State of PW4, PW5 and PW9 has not yielded fruitful result to the Prosecution. Therefore, nothing has come out in the testimony of PW4, PW5 and PW9 which can help the case of the Prosecution. Even otherwise, there are contradictions in the testimony of PWs. The other witnesses cited by the Prosecution are police officials, doctor, Lab Assistant from govt. school, and the Ld. FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 24 of 25 Civil Judge are the formal witnesses.
20. In view of my aforesaid discussion, I am of the considered opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubt, the benefit of which goes to the accused. The accused namely Javed @ Pappu and Mohd. Jamshed @ Putty are acquitted. Their bail bonds are extended for a period of six months u/s 437A Cr.P.C. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 30032012 FIR No. 275/08; State Vs. Javed @ Pappu & Anr. Page 25 of 25